Miller v. Colvin

• Decision Date: 13 July 2015
• Docket Number: No. CIV 14–4040.,CIV 14–4040.
• Citation: 114 F.Supp.3d 741
• Parties: Cosette L. MILLER, Plaintiff, v. Carolyn W. COLVIN, Defendant.
• Court: U.S. District Court — District of South Dakota

114 F.Supp.3d 741

Cosette L. MILLER, Plaintiff,

v.Carolyn W. COLVIN, Defendant.

No. CIV 14–4040.

United States District Court, D. South Dakota, Southern Division.

Signed July 13, 2015.

Steven R. Pfeiffer, Steven R. Pfeiffer, Prof. LLC, Sioux Falls, SD, for Plaintiff.

Alison J. Ramsdell, U.S. Attorney's Office, Sioux Falls, SD, for Defendant.

Office of General Counsel–Dallas, Social Security Administration, Dallas, TX, for Interested Party.

ORDER

LAWRENCE L. PIERSOL, District Judge.

This Court referred the case to United States Magistrate for the purpose of issuing a Report and Recommendation. The Magistrate Judge has recommended that the Commissioner's denial of benefits be reversed and remanded for reconsideration pursuant to 42 U.S.C. § 405(g), sentence four.

A sentence four remand is proper when the district court makes a substantive ruling regarding the correctness of the Commissioner's decision and remands the case in accordance with such ruling. Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir.2000). Remand with instructions to award benefits is appropriate "only if the record overwhelmingly supports such a finding." Buckner at 1011.

Even though no objections have been filed, the Court has carefully conducted a de novo review of the Magistrate Judge's Report and Recommendation and the record of the administrative proceedings. After having reviewed the record, the Court agrees with the Magistrate Judge's Report and Recommendation. Accordingly,

IT IS ORDERED:

1. That the Magistrate Judge's Report and Recommendation, Doc. 17, is ADOPTED by the Court.

2. That Plaintiff's Motion to Reverse Decision of the Commissioner, Doc. 11, is GRANTED.

3. That the Commissioner's decision is REVERSED under sentence four of 42 U.S.C. § 405(g) and the case is REMANDED to the Commissioner for reconsideration pursuant to 42 U.S.C. § 405(g), sentence four.

REPORT AND RECOMMENDATION

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

Plaintiff, Cosette L. Miller seeks judicial review of the Commissioner's final decision denying her payment of benefits under Title II and Title XVI of the Social Security Act.¹ Ms. Miller has filed a Complaint and has requested the Court to reverse the Commissioner's final decision denying her disability benefits and to enter an Order awarding benefits. Alternatively, Ms. Miller requests the Court remand the matter to the Social Security Administration for further development with instructions to (1) properly evaluate the opinions of her medical providers; (2) reassess her residual functional capacity; (3) reassess her testimony and credibility; (4) further develop the record with additional consultative exams, testing and expert vocational evidence as necessary; and (5) issue a new decision based on substantial evidence of the record as a whole and proper legal standards. The matter is fully briefed and has been referred to this Magistrate Judge for a Report and Recommendation. For the reasons more fully explained below, it is respectfully recommended to the District Court that the Commissioner's Decision be REVERSED and REMANDED.

JURISDICTION

This appeal of the Commissioner's final decision denying benefits is properly before the District Court pursuant to 42 U.S.C. § 405(g). Judge Piersol referred this matter to the Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Schreier's Standing Order dated October 16, 2014.

STIPULATED FACTS²

A. Administrative Proceedings.

This action arises from Ms. Miller's applications for SSD and SSI benefits protectively filed on September 6, 2011, alleging disability since September 7, 2011, due to auto immune disorder

, fibromyalgia, migraines, depression, and obesity. AR 26, 75, 82, 85, 92, 173, 175, 182, and 226 (citations to the appeal record will be cited by "AR" followed by the page or pages).

Ms. Miller's claims were denied initially and upon reconsideration. AR 112, 118, 121. Ms. Miller then requested an administrative hearing. AR 124.

Ms. Miller's administrative law judge hearing was held on September 24, 2012 by the Honorable Robert Maxwell, ("ALJ"). AR 41. Ms. Miller was represented by different counsel during the hearing. AR 41. An unfavorable decision was issued on October 12, 2012. AR 21.

The ALJ found that Ms. Miller met the insured status for benefits through December 31, 2015, and she had not engaged in substantial gainful activity, ("SGA"), since the alleged onset date of September 7, 2011. AR 26. The ALJ found that Ms. Miller had multiple severe impairments including fibromyalgia

, obesity, and migraines, but that none of her impairments met or medically equaled a Listing. AR 26–29.

The ALJ also found that Ms. Miller had additional medically determinable impairments including diabetes type 2

, obstructive sleep apnea, arthritis syndrome, thyroid disorder, affective disorder, and personality disorder, but determined that all of these impairments were nonsevere. AR 26–27.

The ALJ determined that Ms. Miller's mental impairments

caused her mild limitations in activities of daily living, social functioning, and in concentration, persistence or pace. AR 27–28.

The ALJ determined that Ms. Miller had the residual functional capacity ("RFC") to perform less than a full range of light work: she was limited to lifting and carrying 20 pounds occasionally and 10 pounds frequently, sitting with normal breaks for about 6 hours out of an 8–hour workday, standing or walking with normal breaks about 4 hours out of an 8–hour workday, limited to frequent stooping, crouching, kneeling, crawling, and climbing of ladders, ropes, scaffolds, stairs and ramps. AR 26–29.

The ALJ found that Ms. Miller's medically determinable impairments could reasonably be expected to cause the symptoms alleged by her, but her statements concerning the intensity, persistence and limiting effects of those symptoms were not fully credible to the extent they were inconsistent with the RFC determined by the ALJ. AR 29–30.

Based on the RFC determined by the ALJ, the ALJ found with the assistance of a vocational expert that Ms. Miller was able to perform her past relevant work as a credit card analyst, a customer service clerk, and a technical support person. AR 32. The ALJ stopped the sequential evaluation at this 4th step and concluded Ms. Miller was not disabled. AR 32–33.

Ms. Miller timely requested review by the Appeals Council. AR 19. The Appeals Council considered the additional evidence that Ms. Miller submitted, but denied her request for review, making the ALJ's decision the final decision of the Commissioner. AR 1–7. Ms. Miller then timely filed this action.

B. Plaintiff's Age, Education and Work Experience.

Ms. Miller was born in 1970, making her 42 years old at the time of the decision. AR 182. She completed college in 2008. AR 227.

The vocational expert, ("VE"), found Ms. Miller had past work as a credit card analyst, customer service clerk, and technical support person. AR 266. The ALJ noted the VE's findings, and stated in the decision that Ms. Miller reported she worked as a software technician, a credit card analyst and a customer service clerk, citing exhibits 10E and 13E. AR 32. Ms. Miller reported in exhibit 10E that she worked for Cigna Home Delivery Pharmacy between June 2006 and September 2011, and her duties were to process medication changes for cost savings as a pharmacy technician at a mail order pharmacy. AR 227, 263. Her duties at Citibank between May 2002 and June 2006 involved credit analysis. Id. Her duties at Software Unlimited between March 2000 and January 2002, and at Sweet Computer Services between March 1998 and March 2000 involved software support technician. Id.

C. Relevant Medical Evidence.

1. Sanford Clinic—Family Medicine: Douglas R. DeHaan, MD:

Ms. Miller was seen by Dr. DeHaan on 9/23/10 for a headache, 3 days after being treated in the emergency room for a migraine headache. AR 290. At the time her headache occurred, Ms. Miller was taking hydrocodone

and the antidepressant Nortriptyline as a prophylactic medication. Id. Her depression was described as stable, but she had recently stopped Wellbutrin and started Zoloft. AR 291. The objective examination revealed a normal neurological examination, intact sensation and cranial nerves, a normal gait, a normal range of neck motion, and no tenderness. AR 291. Ms. Miller's other ongoing diagnoses included hypertension

, diabetes, fibromyalgia, dysthymia, iron deficiency, hypothyroidism, and Gastroesophageal reflux disease ("GERD"). AR 293.

Ms. Miller was seen for other minor matters by other doctors at the clinic, but next saw Dr. DeHaan for her fibromyalgia

on 1/14/11. AR 310. Ms. Miller reported soft-tissue pain in her chest, trunk, arms, back, buttocks, and legs, and noted that the pain was fairly severe and gradually worsening lately. AR 310. She also reported moderate fatigue which was also gradually worsening. Id. Her medications included Neurontin, Vicodin, Zoloft, Amerge for headaches, Prilosec, and Pamelor. AR 310–311. Ms. Miller was considering applying for short-term disability and requested that an FMLA form be completed. AR 311. Dr. DeHaan's exam documented tenderpoints including Ms. Miller's chest, trunk, arms, buttocks, and legs, and his impression was moderately severe fibromyalgia which was gradually worsening. Id. Neurontin was started and Dr. DeHaan completed the FMLA form. Id.

Ms. Miller saw Dr. DeHaan again on 1/28/11 to complete short term disability paper work. AR 320. She had been off work since 1/13/11 due to fibromyalgia

pain which was aggravated by her job which required sitting at a computer all day and caused more pain in her arms, back, chest, neck and legs. Id. Ms. Miller reported being extremely tired and sleeping most of the time she was off work. Id. She reported that the gabapentin (a/k/a Neurontin ) started on 1/14/11 was starting to help the pain, and that the day of her appointment was her first pain free day. Id. Dr. DeHaan increased the gabapentin...